While researching for our new report, Joint Enterprise: A view over time, one thing really struck me – it was not always this way.
In our recent report, we looked at data on multi-defendant homicide cases since 2005. Two things remained stubbornly consistent in the data over the last two decades: the demographic profile (age, sex, ethnicity) of the defendants and the number of defendants involved in these multi-defendant cases.
We have used multi-defendant cases as a proxy for joint enterprise. Joint enterprise is itself an informal term that describes cases where individuals are prosecuted on the basis of having assisted or encouraged another to commit an offence, often based on a shared common purpose or intention with others. This legal approach has been used for centuries but our research suggests that the consistency we see in the numbers of multi-defendant cases in recent years may not have always been the norm.
Data from the Homicide Index – obtained through an FOI request – shows that three or more suspects are now charged in nearly 10 per cent of homicide cases, compared with around three per cent in the early 1980s. If you turn the clock back even further, it appears that multi-defendant homicide cases were not consistent year on year. A Home Office report in 1961 noted that the number of multi-defendant cases in 1960 was so exceptional it led to anomalies in related statistics (such as the ratio of suspects to victims and the number of acquittals). What was exceptional in the 1960s has become the norm.
Sentencing – then and now
Another reflection from 1960 is that, back then, there was an effort to distinguish between levels of involvement in murder offences in particular. The 1957 Homicide Act set out that an individual would only be convicted of capital murder if they caused the death by their own act, directly used force or attempted to inflict grievous bodily harm on the murder victim. Capital murder carried the death penalty so this distinction was a matter of life and death, it was important to really work out how implicated a person was and for what crime. When we abolished the death penalty, this distinction in sentencing between those who actually caused a death and those who may have contributed to it, went too.
Today, all defendants convicted of murder in multi-defendant cases face the same mandatory life sentence, whether they were the principal attacker or whether they were convicted under secondary liability with no palpable acts of violence. While the starting point for the life sentence can vary, there is no separate sentencing framework for those convicted through secondary liability laws, so there is limited scope to reflect different and lesser degrees of culpability in sentencing.
As minimum terms have increased over the last two decades, the consequences for secondary defendants have become more severe. While this extends to a wide range of offences, the consequences for murder and manslaughter are particularly acute. We found that, in 2012, only seven per cent of defendants convicted of manslaughter in multi-defendant cases (in which they weren’t considered the main suspect) were given a prison sentence of 10 years or more. In 2022, this had risen to 42 per cent.
It is worth bearing in mind these growing sentence lengths when one considers quite how young many of the defendants in multi-defendant cases are.
The picture today
Last year, the Crown Prosecution Service published data on joint enterprise based on a monitoring scheme to flag such cases in their records. They paint a similar picture to the twenty years of proxy data we looked at. Joint enterprise defendants are predominantly young and disproportionately Black.
We found that defendants in multi-defendant homicide cases are overwhelmingly young. Around 40 per cent of those convicted in cases involving four or more defendants are young adults (18–24) and, while children (aged 10-13) may comprise a very small proportion of homicide defendants overall, 30 per cent of those convicted of homicide were convicted in cases involving four or more defendants.
Meanwhile, Black defendants convicted of homicide are three times more likely than White defendants to be convicted in a group of four or more. This statistic must be considered alongside a body of qualitative evidence indicating that discretionary decision-making — including the interpretation of association, “gang” narratives, and shared intent — contributes to such trends.
A time for change?
Group prosecutions were not always such a fixture in homicide statistics, and the weight of the death penalty once inspired legislators to distinguish between those who had carried out the violence and those who did not. History suggests that the current ‘job lot’ approach was not inevitable and, with political will, it can be changed.
A broad range of institutions are now engaging with concerns around joint enterprise. Perhaps this is the time to engage with important questions about how individual conduct, intent and culpability are assessed in homicide prosecutions and sentencing.
